Contract
Exhibit
10.1
between:
REAGENTS
APPLICATIONS, INC.,
a
Delaware corporation;
And
CLINIQA
CORPORATION
a
California corporation
Dated
as
of October 8, 2007
THIS
ASSET PURCHASE AGREEMENT (hereinafter, along with all Exhibits hereto,
this “Agreement”) is being entered into as of the close of business on October
8, 2007, by and between REAGENTS APPLICATIONS, INC. (“Seller”)
a Delaware corporation located at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000
and
CLINIQA CORPORATION (“Purchaser”) a California corporation
located at 000 Xxxx Xxxx Xxxxxx Xx. Xxx Xxxxxx, XX 00000 for the assets of
Reagents Applications, Inc., a wholly owned subsidiary of
Hemagen Diagnostics, Inc., a Delaware Corporation located at 0000 Xxx Xxxxxx
Xxxx, Xxxxxxxx, XX 00000. Seller and Purchaser are referred to
collectively in this Agreement as the “Parties.”
The
Parties wish to provide for the purchase by Purchaser of certain assets from
Seller on the terms and subject to the conditions and other provisions set
forth
in this Agreement.
The
Parties, intending to be legally bound, agree as follows:
1.1. Sale
and Purchase of Specified Assets. On the terms and subject
to the conditions and other provisions set forth in this Agreement, at the
Closing Seller will sell and transfer to Purchaser, and Purchaser will purchase
and receive from Seller, all of the following, as they exist at the Closing
Date
(the “Specified Assets”):
(a) all
of Seller’s rights and interests in products that are set forth in
Exhibit A (the “Specified Products”), which includes but
is not limited to any 510k application or 510k approval for any Specified
Products; with the exception that Hemagen shall continue to share the rights
and
interest in Raichem formulations and/or 510K clearances for any Raichem
formulations that are or will be used only in Hemagen’s
Analyst® Consumable Products.
(b) all
of Seller’s rights and interests in, and the documentary records reflecting, the
proprietary formulas, recipes and manufacturing procedures for the Specified
Products set forth in Exhibit B (the “Specified
Know-How”); with the exception that Hemagen shall continue to share the rights
and interest in Raichem formulations and/or 510K clearances for any Raichem
formulations that are or will be used only in Hemagen’s
Analyst® Consumable Products
(c) all
of Seller’s rights and interests in certain contracts and purchase orders set
forth in Exhibit C (the “Specified
Contracts”);
(d) Seller’s
customers for the Specified Products and other customers of Seller that are
set
forth in Exhibit D (the “Specified Customers”) and
Seller’s business goodwill;
(e) all
items of laboratory equipment owned or leased by Seller set forth on
Exhibit E (the “Specified Laboratory
Equipment”);
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(f) the
laboratory supplies relating to the Specified Products and the Specified
Contracts set forth on Exhibit F (the “Specified
Laboratory Supplies”).
(g) $100,000
worth of inventory as further described in the Inventory Purchase Agreement
on
Exhibit L;
(h) all
proprietary documentation, trade secrets and marketing rights including,
but not
limited to, trademarks, tradenames, copyrights, XX xxxxx, FDA approvals,
and any
licenses for trade owned by Seller. This includes any pending
regulatory filings as well as the Raichem name; with the exception that Hemagen
shall continue to share the rights and interest in Raichem formulations and/or
510K clearances for any Raichem formulations that are or will be used
only in Hemagen’s Analyst® Consumable
Products;
(i) With
respect to the Xxxxxxx Freeze Dryer Lyomax 170 (the “Dryer”) Purchaser shall
provide Seller with two Lypholization runs for Seller’s Analyst
Controls. Purchaser shall provide all control materials to be used to
fill vials; and Seller shall provide bottles, caps, stoppers and
labels. Seller shall provide Purchaser with specifications for the
product and Seller shall pre-approve material required prior to acceptance
of
lot. It is anticipated that each run shall consist of approximately
5,000 vials of Level I control, and 5,000 vials of Level II
control. In addition, Purchaser agrees to remove the Dryer from the
premises by May 31, 2008 or such earlier date that the Dryer is removed from
the
building, and to fix and repair the wall and any other damage caused by such
removal to the landlords satisfaction.
1.2. Excluded
Assets. Notwithstanding anything to the contrary contained
in this Agreement, Seller will not be required to sell or transfer to Purchaser,
and the Specified Assets will not be deemed to include any right or interest
in
any of Seller’s assets not expressly set forth in Section 1.1 above. For clarification purposes, and
without limitation, the following assets of Seller and/or Hemagen Inc. are
expressly excluded from the sale:
(a) any
of Seller’s cash, cash equivalents, accounts receivables, all equipment and
inventory related to Hemagen’s Analyst business, the large conference room
table, all inventory with the exclusion of $100,00 included above in
1.1(g).
(b) Hemagen
shall continue to share the rights and interest in Raichem formulations and/or
510K clearances for any Raichem formulations that are or will be used
only in Hemagen’s Analyst® Consumable
Products.
1.3. Purchase
Price. Purchaser will make the following payments to Seller,
which in the
aggregate,
constitutes the purchase price of the Specified Assets (“the Purchase
Price”):
(a) On
the Closing Date, Purchaser will pay to Seller (without deduction or setoff
of
any nature) the sum of three hundred and sixty thousand U.S. dollars
($360,000.00);
(b) Purchaser
will pay to Seller (without deduction or setoff of any nature) a total of
eight
hundred and forty thousand U.S. dollars ($840,000.00) (hereinafter, along with
the interest due on such payments, the “Cash Remainder Payments”) by means of
monthly payments of principal of seventeen thousand five hundred U.S. dollars
($17,500.00), plus accrued interest at the rate of eight percent (8%) per
year,
each upon the following schedule in accordance with
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terms
of
a promissory note issued to Seller (the “Promissory Note”) as set forth in
Exhibit G, and dated the Closing Date:
1) the
first payment shall be made not later than the ninetieth (90th) day
afterthe
Closing Date;
Once
the
Closing Date is ascertained, Seller shall provide Purchaser with a schedule
reflecting the actual dates on which the Cash Remainder Payments are to be
made;
provided, however, any failure by Seller to provide such schedule
shall in no manner alter, waive, modify, suspend or otherwise change Purchaser’s
obligation to make any Cash Remainder Payment. Purchaser shall pay
interest on the outstanding balance of the Cash Remainder at the annual rate
of
eight percent (8%), which shall begin to accrue on the Closing
Date. Each of the Cash Remainder payments shall also include a
payment of interest at the eight percent (8%) annual rate for the outstanding
balance of the Cash Remainder for the period prior to each payment.
(c) Any
payment due by Purchaser under this Agreement and the Promissory Note, including
but not limited to this Section 1.3, shall be by
wire transfer of immediately available funds pursuant to standing wire
instructions provided by Seller, which Seller may amend upon
notice.
1.4. Purchaser’s
Failure To Make Any Payment Due. If Purchaser fails to make
any payment due by Purchaser to Seller pursuant to this Agreement, the
Promissory Note and the Inventory Purchase Agreement (a “Delinquent Amount”),
within ten (10) days, Seller shall provide Purchaser of the default specifying
the total due to cure the default and invoices or other support for the amount
being claimed and shall provide the Purchaser with twenty (20) consecutive
days
from receipt of the written demand to cure the default. The
Delinquent Amount shall accrue interest each day on said amount(s) at the
higher
of (i) sixteen per cent (16%) per annum (“Delinquent Interest”) or (ii) the
maximum legal amount of interest that may be charged. If any
Delinquent Amount and/or any Delinquent Interest is outstanding more than
thirty
(30) days, Seller may immediately accelerate the date for any Cash Remainder
Payments pursuant to the Promissory Note and Purchaser shall make such payments
within two Business Days of such notice.
1.5. Personal
Guarantee. Each payment due by Purchaser to Seller pursuant
to this Agreement and the Promissory Note shall be personally guaranteed
in
writing by Purchaser’s Chief Executive Officer, Xxxxxxx Xxxxx and his spouse,
Xxxxxxxx Xxxxx (the “Personal Guarantee”). The executed Personal
Guarantee shall be set forth as Exhibit
H to this Agreement.
1.6. Security
Interest. This Agreement shall be secured by the property
set forth in the Security Agreement that is attached hereto as
Exhibit I. The Security Agreement shall be
executed by Purchaser and delivered to Seller on or before the Closing
Date. Seller may file a financing statement pursuant to the
California Uniform Commercial Code to perfect such security
interest.
1.7. Allocation
of the Purchase Price. The purchase price set forth in
Section 1.3 shall be allocated in the manner set
forth in Exhibit J. Each of the Parties
agrees to report this
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transaction
for tax purposes in accordance with this allocation of purchase
price. The Parties agree that the allocation is reasonable and is
intended to comply with Internal Revenue Code Section 1060 and the rules
and
regulations thereunder.
1.8. Taxes. Purchaser
will bear and pay, and will reimburse Seller for, any sales taxes, property
taxes, use taxes, transfer taxes, documentary charges, recording fees, filing
fees or similar taxes, charges, fees or expenses that may become payable
in
connection with the sale of the Specified Assets or which are assessed on
the
Specified Assets for any period on and after the Closing Date.
1.9. Bulk
Sales Law. Purchaser waives compliance by Seller with any
applicable bulk sales law, and Seller agrees to indemnify Purchaser against
any
liability incurred by Purchaser thereunder by reason of such non-compliance
by
Seller.
1.10. Seller’s
Audit Rights. Not more than once each quarter, Seller shall
have the right to audit Purchaser’s books, records and accounts with respect to
any payment due, alleged by Seller to be due, or paid pursuant to this Agreement
and the Promissory Note.
1.11. Specified
Employees. The Parties agree that Purchaser may solicit for
employment or other contractual work relationships (“Employment”) certain
employees of Seller who are involved in the production of Specified Products
and
the implementation of the Specified Contracts (the “Specified Employees”), a
List of whom is set forth on Exhibit
K. Purchaser acknowledges and agrees that:
(a) Purchaser
has not relied on any representation or statements by Seller as to the
suitability of any Specified Employee for Employment with
Purchaser;
(b) Purchaser
is solely responsible for conducting its own due diligence as to each Specified
Employee to whom Purchaser may or does make an offer of Employment;
(c) Purchaser
is solely responsible for determining whether it is necessary or desirable,
or
unnecessary or undesirable, as the case may be, for Purchaser to offer
Employment to, or to continue with any Employment relationship that may be
established with any Specified Employee, in order for Purchaser to incorporate
the Specified Assets into Purchaser’s business;
(d) Purchaser’s
obligations under this Agreement, including but not limited to the payment
obligations set forth in Section 1.3, are not
dependent in any manner upon: i) any Specified Employee accepting any Employment
with Purchaser; or ii) if any Specified Employee accepts Employment, the
continuation of Employment with Purchaser or the Specified employee’s work
performance.
1.12. Closing. The
closing of the purchase and sale of the Specified Assets (the “Closing”) will
take place at the offices of Seller located at 0000 Xxxxxxx Xxxxx, Xxx Xxxxx,
XX
00000, at a time and on a date to be designated by Seller, which will be
at
least one business day but not more than three business days after the
satisfaction or waiver of the last condition to be satisfied or waived of
the
conditions set forth in Sections 6 and 7 (other than
those conditions that by their nature
are to be satisfied at the Closing). For purposes of this Agreement,
“Closing Date” means the date on which the Closing actually takes
place.
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2.1. Title
to Assets. As of the Closing Date, except as otherwise
described in this Agreement, Seller will have good and valid title to all
of the
personal property that constitutes the Specified Assets free and clear of
any
liens or encumbrances, except for (i) any lien for current taxes not yet
due and
payable; (ii) any lien or encumbrances referred to in the Specified Contracts;
and (iii) minor liens and encumbrances that have arisen in the ordinary course
of business and that do not materially detract from the value of the Specified
Assets subject thereto.
2.2. Specified
Products. Seller has not knowingly granted any Person a
license under any of the Specified Products Seller has received no written
claim
of infringement of any intellectual property rights of any person arising
out of
Seller’s development, manufacture, use, sale, or offer for sale of the Specified
Products. Seller has supplied to Purchaser true and correct copies of
the 510k applications and approvals for certain Specified Products.
2.3. Specified
Contracts. Seller has made available to Purchaser true and
correct copies of each Specified Contracts identified in Exhibit
C. Seller has received no notice that Seller is in
material breach of any such executed contract, and, to Seller’s knowledge, no
other party to any such contract is in material breach of such
contract. Seller expressly makes no representation or warranty as to:
(i) the ability of Purchaser to take an assignment of any of the Specified
Contracts; or (ii) the ability or willingness of any party to a Specified
Contract to establish or thereafter to continue a business relationship with
Purchaser.
2.4. Regulatory
Matters. Seller has received no written notice that any
recalls, field notifications or seizures have been ordered or, to Seller’s
knowledge, threatened by any governmental body with respect to any of the
Specified Products. Seller has not received a warning letter or other
similar written notice from the U.S. Food and Drug Administration (FDA)
regarding the Specified Products or the manufacturing facilities used to
manufacture the Specified Products. Seller is in substantial
compliance with the laws applicable to the development, manufacture, labeling,
testing and inspection of the Specified Products and the operation of
manufacturing facilities used to manufacture the Specified Products, and
with
all applicable regulations, policies and procedures promulgated by the
FDA.
2.5. Legal
Proceedings. There is no lawsuit or other legal proceeding
pending or, to Seller’s knowledge, being threatened against Seller as of the
date of this Agreement that involves the Specified Assets and which would
reasonably be expected to result in a judgment having a material adverse
effect
on the value of the Specified Assets taken as a whole.
2.6. No
Broker or Finder Used. Seller has not employed any broker,
finder or investment banker in connection with the sale of the Specified
Assets
to Purchaser, and has not agreed to the payment of any fee or commission
to any
person in connection with the sale of the Specified Assets to
Purchaser.
2.7. Financial
Statements. Seller’s financial statements, including the
balance sheet, delivered by Seller to Purchaser during the Pre-Closing Period
are true and correct copies thereof and fairly present in all material respects
the financial position of Seller as of such dates and for the periods delineated
in such financial statements.
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2.8. Authority;
Binding Nature of Agreement. Seller has all necessary
corporate power and authority to execute and deliver this Agreement and to
perform its obligations under this Agreement; and the execution, delivery
and
performance by Seller of this Agreement have been duly authorized by all
necessary action on the part of Seller and its board of
directors. Upon execution, this Agreement will constitute a valid and
binding obligation of Seller, enforceable against Seller in accordance with
its
terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
2.9. No
Implied Representations or Warranties. Purchaser hereby
acknowledges and agrees that Seller is not making any representation or warranty
whatsoever, express or implied, except for those representations or warranties
of Seller that are expressly set forth in this Agreement. Subject to
the Seller’s express warranties and representations in this Agreement: (a) the
Specified Assets are being sold by Seller and purchased by Purchaser on an
“as
is, where is” basis and in their then present condition, and Purchaser shall
rely solely upon its own examination thereof; and (b) Seller and/or none
of
Seller’s officers, directors, employees or representatives has made any
representation, express or implied, or any warranty with respect to any
Specified Asset including but not limited to: (ii) the merchantability,
suitability or fitness for a particular use; (ii) the absence of any defect,
whether latent or patent; (iii) its condition, value or quality; (iv)
Purchaser’s ability to utilize or incorporate into Purchaser’s business any
Specified Asset; or (v) the ability or likelihood of any Specified Asset
to
generate any sales, income, revenue or profit for Purchaser.
2.10. Access
to Hemagen Accounting System. For a period of time following
the effective date, Purchaser will be given limited access to the Hemagen
accounting software system in order to complete the transition of accounting
and
processing of transactions into the accounting system maintained by
Purchaser. This would include, but not be limited to, Bills of
Materials, Routers, inventory item maintenance files, etc.
Access
to
Electronic Documents. Purchaser will be provided, wherever possible,
electronic files in support of all controlled documents as they relate to
any
Products being acquired under this agreement. This includes, but is
not limited to, IMS documents, manufacturing specifications and Certificates
of
Analysis and any other document necessary for Purchaser to continue producing
and selling Products without interruption.
2.11. Taxes. The
Seller has timely filed all Tax Returns that it was required to file pertaining
to the Specified Assets. All such Tax Returns pertaining to the
Specified Assets were correct and complete in all respects. All Taxes
owed by the Seller (whether or not shown or required to be shown on any Tax
Return) have been paid. The Seller is not the beneficiary of any
extension of time within which to file any Tax Return. No claim has
ever been made by an authority in a jurisdiction where the Seller does not
file
Tax Returns that it is or may be subject to taxation by that
jurisdiction. There are no Encumbrances on any of the assets of the
Seller that arose in connection with any failure (or alleged failure) to
pay any
Tax.
The
Seller has withheld and paid all Taxes required to have been withheld and
paid
in connection with any amounts paid or owing to any employee, independent
contractor, creditor, stockholder, or
other
third party, and all Forms W-2 and 1099 required with respect thereto have
been
properly completed and timely filed.
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(i) The
Seller has not waived any statute of limitations in respect of Taxes or agreed
to any extension of time with respect to a Tax assessment or
deficiency.
(ii) The
Seller is not a party to any Tax allocation or sharing agreement.
(iii) The
Seller has not distributed stock of another Person, or has had its stock
distributed by another Person, in a transaction that was purported or intended
to be governed in whole or in part by Code Section 355 or 361.
For
purposes of this Agreement, “Tax” or “Taxes” means any federal,
state, local, or foreign income, gross receipts license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental
(including taxes under Code Section 59A), customs duties, capital stock,
franchise, profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, whether computed on a separate or consolidated,
unitary or combined basis or in any other manner, including any interest,
penalty, or addition thereto, whether disputed or not and including any
obligation to indemnify or otherwise assume or succeed to the Tax liability
of
any other Person, and “Tax Return” means any return,
declaration, report, claim for refund, or information return or statement
relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
3.1. Purchaser’s
Ability To Pay the Purchase Price. Purchaser warrants and
represents that it has sufficient available funds to pay in cash the portions
of
the Purchase Price that are due on the Closing Date or shortly thereabout
pursuant to Sections 1.3(a) and 1.3(b). Purchaser has
no knowledge of any
facts of, and does not anticipate the occurrence of any lawsuit or other
legal
proceeding or any change in Purchaser’s business, condition, capitalization,
assets (tangible or intangible), liabilities, operations, financial performance,
that would materially and adversely impact Purchaser’s payment to Seller of the
Cash Remainder Payments.
3.2. Financial
Statements. Purchaser’s financial statements, including the
balance sheet, delivered by Purchaser to Seller during the Pre-Closing Period
are true and correct copies thereof and fairly present in all material respects
the financial position of Purchaser as of such dates and for the periods
delineated in such financial statements.
3.3. No
Broker or Finder Used. Purchaser has not employed any
broker, finder or investment banker in connection with its purchase of the
Specified Assets, and has not agreed to the payment of any fee or commission
to
any person in connection with the purchase of the Specified Assets.
3.4. Authority;
Binding Nature of Agreement. Purchaser has all necessary
corporate power and authority to execute and deliver this Agreement and the
Promissory Note and to perform its obligations under this Agreement and the
Promissory Note; and the execution, delivery and
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performance
by Purchaser of this Agreement and the Promissory Note have been duly authorized
by all necessary action on the part of Purchaser and its board of
directors. Upon execution, this Agreement and the Promissory Note
will constitute a valid and binding obligation of Purchaser, enforceable
against
Purchaser in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors
and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
3.5. No
Implied Representations or Warranties. Seller hereby
acknowledges and agrees that Purchaser is not making any representation or
warranty whatsoever, express or implied, except for those representations
or
warranties of Purchaser that are expressly set forth in this
Agreement.
3.6. Vendor
Accounts. Purchaser hereby acknowledges that it will need to
establish new accounts with Seller’s vendors and that it will not utilize
Seller’s vendors accounts post-Closing.
3.7. Seller’s
Customer Funds. Purchaser hereby acknowledges and agrees
that if it receives any funds at the Raichem location that relate to Seller’s
sale of goods delivered prior to Closing, those funds belong to Seller and
Purchaser shall not deposit those funds in its account and immediately forward
those funds to Seller.
3.8. Monthly
and Quarterly Financials. As long as the Promissory Note is
outstanding, Purchaser shall provide Seller with detailed monthly financial
statements during the first twelve months following the closing, and quarterly
financial statements after the first twelve months following the
closing.
3.9. Slow
Paying Customers. Seller shall provide Purchaser with an
accounts receivable schedule of customers that Seller has identified as slow
payers on Schedule 3.9. Purchaser shall
agree that it will not ship any products to these customers until Seller
has
received full payment from these customers. Seller shall inform
Purchaser of the status of these customers on a timely basis.
4.1. Conduct
ofBusiness. Except (i) as contemplated by
this Agreement; (ii) as may be necessary to carry out any of the transactions
contemplated by this Agreement; (iii) as may be necessary to facilitate the
requirements of any Specified Contract; or (iv) as approved by Purchaser,
during
the Pre-Closing Period, Seller:
(a) will:
(i) conduct its business operations according to Seller’s ordinary course of
business, to the extent such operations relate to the Specified Assets, and
(ii)
use commercially reasonable efforts to maintain the Specified Assets;
and
(b) will
not (i) license, sublicense, sell, transfer, encumber or dispose of any material
Specified Asset, or (ii) prematurely terminate or materially amend, grant
a
sublicense under or assign any of the Specified Contracts.
4.2. Access
By Seller. Subject to the provisions of the Confidentiality
Agreement and at Purchaser’s sole expense, during the Pre-Closing Period Seller
will, after receiving reasonable
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advance
notice from Purchaser of not less than two business days (which notice period
may be waived by Seller), give Purchaser reasonable access during normal
business hours to Seller’s books and records relating to the Specified Assets,
excluding the Specified Know-How, solely for the purposes of: (i) effectuating
the sale of the Specified Assets; and (ii) verifying the accuracy of the
representations and warranties set forth in Section 2. The Specified Know-How shall be
transferred to Purchaser on the Closing Date.
5.1. Conduct
of Business. Prior to the Closing, Purchaser shall not
contact or communicate with any party to a Specified Contract prior to the
Closing without Seller’s express authorization. Purchaser may contact
or communicate with a party to a Specified Contract with which Purchaser
has had
an existing business relationship prior to the date of this Agreement, but
shall
not disclose the existence of this Agreement or any term hereof.
Seller’s
obligation to sell and transfer the Specified Assets to Purchaser and to
take
the other actions required to be taken by Seller at the Closing is subject
to
the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by Seller, in whole or in part, in
writing) in this Section 6:
(a) Accuracy
ofRepresentations. The representations and
warranties of Purchaser set forth in this Agreement, including but not limited
to Section 3, shall be accurate in all material
respects as of the Closing Date as if made on and as of the Closing
Date.
(b) No
Adverse Changes. No material adverse change shall have taken
place with respect to the business or financial condition of Purchaser so
as to
impact materially the likelihood of Purchaser making or having the ability
to
make any payments to Seller provided for under this Agreement.
(c) Delivery
of Consideration. Seller shall have received: (i) the cash
payment required pursuant to Section 1.3(a); and
(ii) the executed Promissory Note and cash payment contemplated by Section
1.3(b); as applicable.
(d) No
Restraints. No injunction or other order preventing the
consummation of the transactions contemplated by this Agreement shall have
been
issued since the date of this Agreement by any United States federal or state
court of competent jurisdiction and shall remain in effect; and no United
States
federal or state legal requirement that makes consummation of the transactions
contemplated by this Agreement illegal shall have been enacted or adopted
since
the date of this Agreement and shall remain in effect.
(e) Guarantor
shall have delivered the Guarantee.
(f) Purchaser
shall have executed and delivered to Seller the Security Agreement by Purchaser,
as debtor, and Seller, as secured party.
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(g) Purchaser
shall have executed and delivered to Seller the Inventory Purchase Agreement
that is attached hereto as Exhibit L.
(h) Purchaser
shall have executed and delivered to Purchaser a Sublease Agreement for the
Raichem facility that is attached hereto as Exhibit
M.
Purchaser’s
obligation to purchase and receive the Specified Assets from Seller and to
take
the other actions required to be taken by Purchaser at the Closing is subject
to
the satisfaction, at or prior to the Closing, of each of the following
conditions (any of which may be waived by Purchaser, in whole or in part,
in
writing) in this Section 7:
(a) Accuracy
of Representations. The representations and warranties of
Seller set forth in this Agreement, including but not limited to Section
2 shall be accurate in all material respects
as of the
Closing Date as if made on and as of the Closing Date.
(b) No
Adverse Changes. No adverse material change shall have taken
place with respect to the Specified Assets other than those, if any, that
result
from the changes permitted by this Agreement.
(c) No
Restraints. No injunction or other order preventing the
consummation of the transactions contemplated by this Agreement shall have
been
issued since the date of this Agreement by any United States federal or state
court of competent jurisdiction and shall remain in effect; and no United
States
federal or state legal requirement that makes consummation of the transactions
contemplated by this Agreement illegal shall have been enacted or adopted
since
the date of this Agreement and shall remain in effect.
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8.
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8.1. Right
to Terminate Agreement. This Agreement may be terminated
prior to the Closing:
(a) by
the mutual written consent of the Parties;
(b) by
either Party (by delivery of a written termination notification in accordance
with Section 10.7 and which shall state the basis
for the termination) if the Closing has not taken place on or before September
30, 2007, unless the failure of the Closing to take place on or before such
date
is attributable to a breach by such Party of any of its obligations set forth
in
this Agreement; or
(c) by
either Party (by delivery of a written termination notification in accordance
with Section 10.7 and which shall state the basis
for the termination) ) if (i) there shall have been a breach on the part
of the
other Party of any of its representations, warranties or covenants such that
the
conditions set forth in this Agreement would not be satisfied as of the time
of
such breach; (ii) the terminating Party shall have given written notice of
such
breach to the other Party; (iii) at least ten days shall have elapsed since
the
delivery of such written notice to the other
Party; (iv) such breach shall not have been cured; and (v) the other Party
shall
not be using commercially reasonable efforts to attempt to cure such
breach.
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8.2. Effect
of Termination. Upon the termination of this Agreement
pursuant to Section 8.1, neither Party will have
any obligation or other liability to the other Party, except that (i) the
Parties will remain bound by the provisions of Section 10 and by the provisions of the Confidentiality
Agreement, and (ii) neither Party will be relieved of any liability for any
breach of its obligation to consummate the transactions contemplated by this
Agreement or its obligation to take any other action required to be taken
by
such Party at or before the Closing.
Subject
to the limitations set forth herein, each Party shall indemnify the other
Party
with respect to any and all claims, lawsuits, liabilities, losses, damages,
costs and expenses arising out of any inaccuracies in any express representation
or warranty made by each respective Party in this Agreement (an “Indemnification
Claim”). An Indemnifying Party shall not be required to indemnify the
Indemnified Party pursuant to an Indemnification Claim except to the extent
that
the aggregate Indemnification Claim(s) exceed five thousand U.S. dollars
($5,000.00) No indemnification claim shall be filed, brought or asserted
more
than eighteen (18) months from the Closing Date. The aggregate
amounts payable by an Indemnifying Party with respect to all claims for
indemnification by other Party and/or any third party shall not exceed twenty
thousand U.S. dollars ($20,000.00).
10.1. Notices. Any
notice or other communication required or permitted to be delivered to either
Party under this Agreement must be in writing and will be deemed properly
delivered, given and received as follows: (i) on the date delivered for delivery
by hand, registered mail, recognized courier or overnight delivery service;
(ii)
on the next Business Day for delivery by facsimile to the facsimile number
set
forth beneath the name of such Party below, with written fax confirmation
of
successful transmission. A Party may specify new notice information
for itself by providing written notice pursuant to this Section 10.1.
If
to
Purchaser:
Cliniqa
Corporation
Attention:
Xxxxx
Xxxxx
000
Xxxx Xxxx Xxxxxx Xx.
Xxx
Xxxxxx, XX 00000
Fax
Number: 000-000-0000
If
to
Seller:
Hemagen
Diagnostics, Inc.
Attention:
Xxxxxxx X. Xxxxx, Chairman, President and CEO
0000
Xxx Xxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax
Number: (000) 000-0000
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10.2. Business
Days. As used in this Agreement, Business Day shall have the
same meaning as set forth in California Civil Code Section 9.
10.3. Public
Announcements. Except as may be required by any legal
requirement, neither Party will (and neither Party will permit any of its
advisors or representatives to) issue any press release or make any public
statement regarding this Agreement or any of the transactions contemplated
by
this Agreement, without the other Party’s prior written consent (which will not
be unreasonably withheld).
10.4. Assignment. Neither
Party may assign any of its rights or delegate any of its obligations under
this
Agreement (whether voluntarily, involuntarily, by way of merger or otherwise)
to
any other person or entity without the prior written consent of Purchaser;
provided, however, that Seller may, before or after the Closing, (i)
assign to any person or entity its right to receive all or any portion of
any of
the cash payments to be made by Purchaser pursuant under this
Agreement.
10.5. Severability. In
the event that any provision of this Agreement, or the application of such
provision shall be determined to be invalid, unlawful, void or unenforceable
to
any extent, the remainder of this Agreement, and the application of such
provision other than to those circumstances as to which it is determined
to be
invalid, unlawful, void or unenforceable, will not be affected and will continue
to be valid and enforceable to the fullest extent permitted by law.
10.6. Entire
Agreement. This Agreement sets forth the entire
understanding of the Parties and supersede all other agreements and
understandings between the Parties relating to the subject matter
hereof.
10.7. Waiver. No
failure on the part of either Party to exercise any power, right, privilege
or
remedy under this Agreement, and no delay on the part of either Party in
exercising any power, right, privilege or remedy under this Agreement, will
operate as a waiver thereof; and no single or partial exercise of any such
power, right, privilege or remedy will preclude any other or further exercise
thereof or of any other power, right, privilege or remedy.
10.8. Counterparts. This
Agreement may be executed in several counterparts, each of which will constitute
an original and all of which, when taken together, will constitute one
agreement.
10.9. Amendments. This
Agreement may not be amended, modified, altered or supplemented except by
means
of a written instrument executed on behalf of both Parties.
10.10. Interpretation
of Agreement. Each Party acknowledges that it has
participated in the drafting of this Agreement, and any applicable rule of
construction to the effect that ambiguities
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are
to be
resolved against the drafting party will not be applied in connection with
the
construction or interpretation of this Agreement.
10.11. Governing
Law. This Agreement will be construed in accordance with,
and governed in all respects by, the laws of the State of Delaware without
giving effect to principles of conflicts of law.
10.12. Arbitration,
Venue and Jurisdiction. Any dispute, claim or controversy
arising out of this Agreement shall be resolved exclusively by binding
arbitration pursuant to the Commercial Rules of the American Arbitration
Association then in effect, with venue for any arbitration proceedings in
San
Diego County, California. A Party may institute legal action to
compel arbitration or to enforce an arbitration award in the state or federal
courts located in San Diego County, California. Purchaser and Seller
hereby expressly and irrevocably consent and submit to the jurisdiction of
the
state and federal courts in the County of San Diego, State of
California.
10.13. Headings. Headings
included in this Agreement are for convenience only and are not to have any
substantive effect.
10.14. Authority
toExecute. Each individual executing this
Agreement on behalf of a Party (i) represents and warrants that he/she has
all
necessary legal and/or corporate authority to so bind such Party; and (ii)
indemnifies the other Party for any defects in such legal and or corporate
authority.
The
Parties have caused this Agreement to be executed as of October 8,
2007.
| Hemagen Diagnostics, Inc. | |||
|
|
By:
|
/s/ Xxxxxxx X. Xxxxx | |
| Xxxxxxx X. Xxxxx | |||
| Chairman, President and CEO | |||
| Cliniqa Corporation | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxx | |
| Xxxxxxx Xxxxx | |||
| CEO | |||
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